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IN THE COURT OF APPEALS STATE OF ARIZONA, DIVISION ONE

KERMICK Z. DORSEY, Plaintiff/Appellant, vs. ROBERT MICHAEL DELCUPP III and MAKDA TEWOLDEMEDHIN KAHSSAY DELCUPP, husband and wife, Defendants/Appellees.

Court of Appeals Division One No. 1 CA-CV 08-0472 Maricopa County Superior Court No. CV2006-000439

APPELLANTS OPENING BRIEF

Law Office of Craig Stephan By: Craig Stephan P.O. Box 5293 Scottsdale, Arizona 85261-5293 480-767-3787 Fax 480-767-3676 State Bar No. 07227 Attorney for Plaintiff/Appellant

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TABLE OF CONTENTS
Page TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . 3 4 6 7 9 40 41 41 42 43 44 45 46 47

STATEMENT OF THE CASE

STATEMENT OF ISSUES PRESENTED FOR REVIEW . STATEMENT OF FACTS ARGUMENT CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF MAILING

CERTIFICATE OF COMPLIANCE . APPENDIX 1 APPENDIX 2 APPENDIX 3 APPENDIX 4 APPENDIX 5 APPENDIX 6 . . . . . . . . . . . . . . . . . .

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TABLE OF CITATIONS
Page Rule 26.1 of the Arizona Rules of Civil Procedure Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990) McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985) Rule 15 of the Arizona Rules of Civil Procedure MacCollum v. Perkinson, 185 Ariz. 179, 913 P.2d 1097 (App. 1996) Owen v. Superior Court, 133 Ariz. 75, 649 P.2d 278 (1982) Rule 26(b) of the Arizona Rules of Civil Procedure Rule 37(f) of the Arizona Rules of Civil Procedure 14 19 33 34 34 34 37 37, 39

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STATEMENT OF THE CASE

Plaintiff married Mihret Kahssay, the younger sister of defendant Makda DelCupp, in Addis Ababa, Ethiopia on November 17, 2002. Plaintiff contends that unbeknownst to him this was a fraudulent marriage, the real intent of which was to provide Mihret a way to enter the United States on a spousal visa. Mihret entered the United States on a spousal visa (i.e., a K-3 visa) on July 19, 2003, at the Newark, New Jersey Port of Entry, where she was met by plaintiff. The two then traveled to plaintiffs residence in Maricopa County, Arizona. Mihret abandoned plaintiff 19 days later (i.e., on August 7, 2003) and has not been seen by plaintiff since that date. Plaintiff contends that the defendants conspired with and assisted Mihret in the abandonment, thereby defrauding plaintiff of monies spent on Mihret and causing emotional injury to plaintiff. Plaintiffs marriage to Mihret was dissolved by the Maricopa County Superior Court on May 18, 2005. Defendants are residents of Aurora, Colorado. Defendants claimed throughout the case that they had no contacts with the State of Arizona. Defendants initial motion for summary judgment on jurisdiction was denied, on the ground that defendants had voluntarily submitted to the Courts jurisdiction by filing counterclaims. After additional discovery, the Court granted cross-motions for summary judgment on all claims and counterclaims. Prior to entry of final judgment, plaintiff filed a motion requesting additional disclosure and discovery, on the ground that defendants had defrauded the Court and the plaintiff and had obstructed disclosure and discovery. Plaintiffs motion was based upon newly discovered evidence involving the meaning of data contained in defendants Cingular Wireless telephone records, previously obtained via Court Order. The newly discovered evidence showed that -4-

Makda DelCupps cell phone had made calls from the Phoenix area on August 7, 2003. This supported an inference that either one of the defendants or their emissary traveled from Denver to Phoenix on August 7, 2003, and assisted Mihret in abandoning the plaintiff. It also meant (1) that defendants protestations of no contacts with the State of Arizona made over a period of two years were false and misleading, (2) that defendants had failed to disclose significant facts known to them about the matters at issue in the case, and (3) that certain answers given by defendants during their depositions were false, misleading, and/or amounted to perjury. Defendants response to plaintiffs motion contended that the newly discovered evidence was unclear, but failed to assert that plaintiffs underlying allegations based upon the evidence were untrue. Plaintiff filed a reply which requested a hearing at which plaintiff could call an expert from AT&T, and which made an offer of proof as to what the experts testimony would be. The Court waived the parties right to oral argument on the motion, ruled against the plaintiff, and entered final judgment in favor of the defendants in the amount of $281.00.

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STATEMENT OF ISSUES PRESENTED FOR REVIEW

The issues on appeal include: 1. Whether the Court erred or abused its discretion in denying Plaintiffs Motion for

Additional Disclosure and Discovery, Due to Defendants Attempt to Mislead the Court and the Plaintiff, filed 4/12/2008. [Docket #163] 2. Whether the Court erred or abused its discretion in ruling on defendants motion

for summary judgment [Part of Docket #133]. More specifically, whether the Court erred or abused its discretion in granting summary judgment for defendants on plaintiffs claim involving conspiracy to defraud per McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985). 3. Whether the Court erred or abused its discretion in denying plaintiffs alternative

motion for leave to amend the complaint [Part of Docket #150], filed 12/10/2007. 4. Whether the Court erred or abused its discretion in ruling on plaintiffs Request

for Clarification of Minute Entry Order Filed 3/26/2007, which was filed April 2, 2007. [Docket #101] 5. Whether the Court erred or abused its discretion in denying Plaintiffs Motion for

Sanctions for Failure of Defendants to Appear for Their Depositions [Part of Docket #67], filed 11/22/2006. [This was ruled on in the Minute Entry Judgment signed 5/5/2008 and filed 5/7/2008 Docket #173.]

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STATEMENT OF FACTS
1. On 11/22/2006, plaintiff filed Plaintiffs Motion for Sanctions for Failure of

Defendants to Appear for Their Depositions. [Part of Docket #67] This motion requested sanctions for the failure of the DelCupps to appear at their depositions in Denver, Colorado, at a location seven miles from their residence. This motion was denied on 5/5/2008, in the trial courts Minute Entry Judgment. [Docket #173] 2. On April 2, 2007, plaintiff filed a Request for Clarification of Minute Entry

Order Filed 3/26/2007. [Docket #101] This motion requested a clarification relating to discovery. Plaintiff asked the court to clarify that its discovery ruling meant that financial documents that specifically relate to Mihret Kahssay without containing her name on them were discoverable. However, the trial court denied the motion. [Docket #102] The trial court stated, Only documents which say, mention, or refer to Mihret Kahssay need be produced. 3. On August 27, 2007, defendants filed a motion for summary judgment. [Part of

Docket #133] This motion was granted by minute entry ruling on 3/5/2008. [Docket #160] 4. On 12/10/2007, plaintiff responded to defendants motion for summary judgment,

and filed an alternative motion for leave to amend the complaint. [Part of Docket #150] The alternative motion for leave to amend the complaint was denied in the trial courts minute entry ruling on 3/5/2008. [Docket #160] 5. On 4/12/2008, plaintiff filed Plaintiffs Motion for Reconsideration of Ruling on

Defendants Motion for Summary Judgment. [Docket #165] This motion was denied on 5/5/2008, in the trial courts Minute Entry Judgment. [Docket #173] 6. On 4/12/2008, plaintiff filed Plaintiffs Motion for Additional Disclosure and -7-

Discovery, Due to Defendants Attempt to Mislead the Court and the Plaintiff. [Docket #163] This motion alleged that newly discovered evidence showed that the DelCupps had been misleading the plaintiff and the trial court for two years. This motion was denied on 5/5/2008, in the trial courts Minute Entry Judgment. [Docket #173] In its minute entry, the trial court waived oral argument, and found among other things that plaintiffs proffered evidence was untimely, confusing, inconclusive, inconsistent, non-probative, and irrelevant. 7. On January 3, 2008, plaintiff filed a Notice of Service of DVD Containing Clips

of Videotape Deposition Testimony of Makda DelCupp. [Docket #152] A copy of said DVD is included in Appendix 6.

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ARGUMENT
1. The trial court erred or abused its discretion in denying Plaintiffs Motion

for Additional Disclosure and Discovery, Due to Defendants Attempt to Mislead the Court and the Plaintiff. A. Newly Discovered Evidence

On or about April 11, 2008, plaintiff filed a motion requesting additional disclosure and discovery in this case, due to defendants attempt to mislead the trial court and the plaintiff. That motion alleged that the DelCupps had intentionally attempted to mislead the court and the plaintiff by falsely claiming (1) that they had no contacts with the State of Arizona, and (2) that they had nothing to do with Mihret leaving her husband. Plaintiffs motion was based upon new evidence received by plaintiff from AT&Ts Compliance Department [Appendix 5 - AT&T Fax] relating to the Cingular Wireless records for Makda DelCupps cell phone. [Appendix 4 Cingular Wireless cell phone records] On April 8, 2008, Sue Bazin of AT&Ts Compliance Department forwarded a fax to plaintiffs counsel relating to this new evidence. [Appendix 5 - AT&T Fax] On page 2 of that fax, Ms. Bazin states in a notarized affidavit: After a thorough search of the documents relied on in the course of my duties as Custodian of Records and Legal Compliance Analyst, I have verified the following with the Billing Team: SID 0045 relates to area of Denver, CO. SID 04169 relates to the area of Phoenix, AZ. (Emphasis added.) On page 3 of the same fax, Ms. Bazin states: Per our conversation on 04/07/08 I have verified with the billing department -9-

that the following System ID numbers pertain to the following areas: -SID Code 04169 belongs to Phoenix, AZ USA -SID Code 0045 belongs to Denver, CO USA This information identifies that the calls with these codes were placed from in or around those areas. (Emphasis added.) This evidence shows that calls on Makdas cell phone made between 9:20 a.m. and 3:05 p.m. on August 7, 2003, were made or received in the geographic area of Phoenix, Arizona. Connected calls made from the cell phone during this time show an RSYS or System ID number of 4169, which means the calls were made from the geographic area of Phoenix, Arizona. Furthermore, only calls made on August 7, 2003, contain this RSYS or System ID number. All other calls made on the same cell phone during August and September 2003 have an RSYS or System ID number of 45, which means they were made from the geographic area of Denver, Colorado. [Appendix 4 - Cingular Wireless Phone Records] In addition, calls received during the subject time period on August 7, 2003, have a Called Loc code of NACN, which means North American Cellular Network and indicates the cell phone was on roaming mode, i.e., outside its Denver home area. Therefore, Makda DelCupp, Robert DelCupp, or someone acting as their emissary traveled with Makdas cell phone from Denver to Phoenix on August 7, 2003, which is the day Mihret abandoned her husband. This evidence conclusively establishes that the DelCupps had contacts with the State of Arizona on a crucial date in this case. It also supports an undeniable inference that the DelCupps were involved in assisting Mihret to abandon her husband. In light of the DelCupps misconduct in misleading the Court and the plaintiff over a -10-

period of two years, plaintiff requested the court (1) to order the DelCupps to provide comprehensive, full, and fair disclosure of everything they know regarding matters at issue in the case; and (2) to order that the parties are entitled to an additional 90 days of discovery with respect to matters at issue in the case. Plaintiff also requested the court to order the DelCupps to appear in Phoenix, Arizona for any additional deposition testimony which plaintiff may be entitled to take. The Cingular Wireless cell phone records [Appendix 4] show that Robert DelCupp purchased the subject cell phone on August 5, 2003, which was two days before Mihret abandoned her husband. The new evidence shows that early on the morning of August 7, 2003, the cell phone was used in the Denver area, and then was used throughout the day in the Phoenix area. In the late afternoon or early evening the phone was used again in the Denver area. Given this evidence, it is clear that the DelCupps or an emissary of theirs traveled with the cell phone on August 7, 2003 from Denver to Phoenix. Therefore, the DelCupps clearly had contacts with the State of Arizona on that crucial date in this case, contrary to their repeated assertions. In addition, the new evidence supports a clear inference that the DelCupps were involved in assisting Mihret to abandon her husband, which is another allegation they have repeatedly denied throughout the course of this litigation. There is no way to construe this evidence other than to conclude that the DelCupps have intentionally misled the Court and the plaintiff for over two years. It is fundamental that a litigant cannot mislead or lie to a Court. Even pro se litigants without counsel should be aware of this fundamental obligation. In addition, the DelCupps intentional misconduct also served to mislead the plaintiff and to obstruct the plaintiffs ability to obtain appropriate disclosure and -11-

discovery from the defendants. To see how effective the DelCupps misleading statements have been, one only needs to review the trial courts March 5, 2008 ruling on the motion for summary judgment [Appendix 2], which includes the following: The DelCupps have consistently maintained and stated under oath that they never met Plaintiff, have never been to Arizona, had nothing to do with Plaintiffs marriage to Mrs. DelCupps sister, Mihret, etc. Plaintiff has done nothing to challenge these facts. This indicates that the trial court was thoroughly misled by the DelCupps. Plaintiffs new evidence not only challenges the facts set forth in the trial courts minute entry, but also shows the extent to which the DelCupps will go to prevail in this lawsuit, i.e., intentionally mislead the court and otherwise perjure themselves. B. Plaintiffs Diligent Search For This Evidence

Plaintiff diligently sought evidence relating to the Cingular Wireless cell phone records as early as January 2007, when the records were first produced. Shortly thereafter, undersigned counsel spoke with someone in the Cingular Wireless compliance department about information contained in the records, including the numbers in the column labeled ESN and the numbers in the column labeled RSYS. Counsel was told that the ESN numbers were equivalents, with one being a hexidecimal number and other being a decimal number. In addition, he was told that the compliance department did not have information about the RSYS numbers and what they meant on the 2003 records. The clear message counsel received from this conversation was that information about the RSYS numbers was no longer available, even from Cingular Wireless. As a result, plaintiff and his counsel turned their attention to analyzing factual data contained in the records, including telephone numbers, locations of calls, dates of calls, and times of calls. Moreover, plaintiff utilized the services of a private investigator to help track this information. It -12-

is clear that plaintiff diligently attempted to obtain information relating to the Cingular Wireless records throughout the course of discovery. If counsel had not been led to believe that information about RSYS numbers was no longer available, plaintiff would have vigorously pursued this information. [Docket #167 - Certification of Craig Stephan] More importantly, if the DelCupps had properly disclosed information known to them about the August 7, 2003 trip from Denver to Phoenix, plaintiff would NOT have had to rely on codes in cell phone records to prove that the trip took place. After the trial courts March 5, 2008 ruling on the motion for summary judgment, plaintiff and his counsel spent considerable time reviewing all of the evidence. In order to make sure nothing had been overlooked with respect to the cell phone records, counsel contacted a private investigator in Houston, a cell phone expert with AT&T, and a cell phone expert in Arkansas. Although these experts shed some light on additional aspects of the Cingular Wireless records, none of them could provide information about the RSYS codes in the Cingular Wireless records. [Docket #167 - Certification of Craig Stephan] Counsel was then contacted on April 1, 2008 by Sue Bazin in the AT&T compliance department, because she had been unable to reach plaintiff and decided to call his counsel. Sue did not know what the RSYS codes on the Cingular Wireless records meant. Moreover, it is now clear that no one in the AT&T compliance department knew what the RSYS codes meant. However, a particular supervisor who was in the office on the day Sue was working on this issue suggested that Sue contact an individual in the billing department. It turned out that the RSYS numbers, also known as System IDs, are billing codes that can be used to identify the general area from which a cell phone call is made, or in which a call is received. These numbers -13-

are specific to Cingular Wireless/AT&T, and are not general codes used throughout the industry. C. The DelCupps Obstruction of Disclosure and Discovery

On April 8, 2008, Sue Bazin faxed to counsel the information that is described above. This information was newly discovered and was previously unavailable to plaintiff. Moreover, this information indicated that the DelCupps were in possession of relevant and important fact about the events in this case, including who made the trip from Denver to Phoenix, how the trip was made, who paid for it, which airline was used, when the trip was planned and booked, who planned and booked the trip, the purpose of the trip, who else has knowledge about this, and many other similar facts. None of this information was previously disclosed by the DelCupps at any time during the previous two years of litigation. In addition, the DelCupps conduct obstructed plaintiff from obtaining discovery relating to these matters, including but not limited to the taking of depositions of persons with knowledge of the trip and the planning therefor, the service of a subpoena on the appropriate airline for travel and payment information, and the service of subpoenas on appropriate financial institutions for additional relevant payment information (e.g., for credit card receipts for travel expenses). This information goes to the heart of plaintiffs ability to prove this case, since it deals with the involvement of the DelCupps in assisting Mihret to abandon her husband. There is nothing more relevant or more discoverable with respect to this case, than the involvement of the DelCupps in assisting Mihret on August 7, 2003. Pursuant to Rule 26.1, Ariz.R.Civ.P., the DelCupps were required to disclose all relevant and/or discoverable information known to them about this case. Moreover, Rule 37(d) provides that a litigant who fails to disclose unfavorable information can be sanctioned up to and -14-

including dismissal. In light of the DelCupps misconduct, which has been prejudicial to the pursuit of truth and justice in this case, plaintiff requested the trial court (1) to Order the DelCupps to provide comprehensive, full, and fair disclosure of everything they know regarding matters at issue in this case; and (2) to Order that the parties are entitled to an additional 90 days of discovery with respect to matters at issue in this case. Plaintiff further requests the Court to Order that the DelCupps be required to appear in Phoenix, Arizona for any necessary additional deposition testimony which plaintiff may be entitled to take. The intent of this motion is not to harm the DelCupps, but rather to allow the plaintiff a fair shot at proving his case on a level playing field where all parties have to follow the rules. The DelCupps misconduct in misleading the trial court and the plaintiff, in failing to provide basic disclosure, and in obstructing discovery, certainly provided a sufficient basis for granting this motion. The is especially true, because the law favors resolution of disputes on the merits, not on the basis of who can most successfully hide the evidence. D. The DelCupps Never Explained What Happened on August 7, 2003

Nowhere in their response to plaintiffs motion did the DelCupps tell the Court what actually happened on August 7, 2003. Rather, they argued the validity of the new evidence plaintiff obtained via an affidavit from AT&Ts compliance department. For example, the DelCupps argued whether 04169 was the same as 4169, whether 0045 was the same as 45, and whether RSYS and System ID and SID were the same. The DelCupps also noted that certain calls contained on the August 7, 2003 call log, which were allegedly made from Phoenix actually had a Denver RSYS number of 45. All of these arguments are red herrings that are nothing but an attempt to confuse the court and to allow a miscarriage of justice -15-

to occur in this case. It is counsels understanding, based upon conversations with AT&Ts compliance department, that SID means System ID and refers to the numbers appearing in the RSYS column on the phone records. Sue Bazin understood that plaintiff wanted to know the meaning of the RSYS numbers on the Cingular Wireless phone records. She provided the meaning of those numbers, but referred to them with a different nomenclature. That does not invalidate the information contained in her affidavit. Moreover, there is no validity whatsoever to the DelCupps claim that because two different acronyms are used to refer to the same numbers, the evidence presented by plaintiff is misleading. Plaintiff requested from AT&T compliance the meaning of the numbers appearing in the RSYS column on the phone records, and was told that the numbers are System IDs (also referred to by AT&T as billing codes) that show the areas from which the various calls were made. In addition, it is counsels understanding based upon conversations with AT&Ts compliance department that the intermittent codes of 45 appearing on calls made when the cell phone was in the Phoenix area are default codes for phone calls of zero duration. In this regard, the Court will note that every one of the calls showing and RSYS code of 45 made on August 7, 2003 between 9:20 a.m. and 5:51 p.m. is a call of zero duration. In other words, these calls did not connect and were not billed. The 45 appearing in the RSYS column is the default code for the phones home area of Denver, Colorado. In short, the DelCupps phone was in Phoenix, Arizona on August 7, 2003, and they know it. Finally, plaintiff requested that the trial court set an evidentiary hearing and allow plaintiff the right to subpoena a witness from AT&Ts compliance department to testify in open -16-

court. Furthermore, plaintiff made the following offer of proof with respect to said testimony: 1. The witness would be expected to testify that the numbers appearing in the

RSYS column in the DelCupp phone records are System IDs, also referred to as billing codes. These numbers represent the geographic areas from which calls are made. Calls showing the number 45 were made from the area of Denver, Colorado, and calls showing the number 4169 were made from Phoenix, Arizona. 2. The witness would also be expected to testify that the acronym NACN

stands for North American Cellular Network. When it appears on the phone records it means that the subject cell phone was on roaming when it received an incoming call. 3. The witness would also be expected to testify that the codes of 45

appearing on August 7, 2003, between 9:20 a.m. and 5:51 p.m. are default codes for calls of zero duration. The trial court denied plaintiffs motion in the final minute entry judgment dated May 5, 2008. [Appendix 1] In its minute entry, the trial court waived plaintiffs request for oral argument and proceeded to deny the motion for additional discovery. The trial court found that the proffered evidence is untimely, confusing, inconclusive and inconsistent. It includes multiple hearsay. It is non-probative and irrelevant. This assessment is completely off the mark. Plaintiff explained in detail why the evidence was not obtained earlier, including the fact that the Cingular Wireless Compliance Department itself did not have this information. Plaintiff used more than due diligence to obtain the information, but unfortunately it was unavailable. Moreover, the trial court placed the entire burden in this matter on plaintiff, without giving any -17-

regard to the fact that plaintiffs job in obtaining the evidence was obstructed by defendants. A defendant who obstructs discovery and disclosure cannot complain that the plaintiff failed to timely discover evidence that defendant should have disclosed in the first place. That would make a complete mockery of the disclosure obligations. Next, the trial courts reference to the proffered evidence must mean the fax from Sue Bazin, and cannot possibly mean the proffered testimony of an expert from AT&T. Surely, the trial court would not find that such an expert would be precluded from testifying to the evidence described in plaintiffs offer of proof. Finally, the trial courts assertion that the evidence is non-probative and irrelevant raises an issue as to whether the trial court understood the nature of plaintiffs motion. It is certainly relevant when one litigant has misled another for over two years, obstructing disclosure and discovery in the process. If that is not an issue that an affected litigant is entitled to raise, then there is little hope for justice in our courts. For the foregoing reasons, the trial court erred or abused its discretion in denying Plaintiffs Motion for Additional Disclosure and Discovery, Due to Defendants Attempt to Mislead the Court and the Plaintiff. The Court of Appeals should remand this case for further disclosure and discovery as requested in the motion. In the alternative, the Court of Appeals should remand for an evidentiary hearing on this issue, at which plaintiff would be entitled to call an expert from AT&T regarding the content of the Cingular Wireless cell phone records. 2. The Court erred or abused its discretion in ruling on defendants motion for

summary judgment and motion for reconsideration. A motion for summary judgment should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that -18-

reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense. Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000 (1990). The content of the Courts ruling on defendants motion for summary judgment makes it clear that the Court did not follow the law in evaluating and ruling on said motion. The rules for evaluating a motion for summary judgment include the following: Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge, whether he is ruling on a motion for summary judgment or for directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Orme School v. Reeves, 166 Ariz. 301, 309-310, 802 P.2d 1000 (1990). In other words, the starting place for evaluating a motion for summary judgment is (1) to accept as true the evidence submitted by the non-moving party, and (2) to accept as true all justifiable inferences to be drawn from the non-moving partys evidence. A. The Courts Evaluation Begins Backwards

In this case, the Court effectively began its analysis by stating: The DelCupps have consistently maintained and stated under oath that they never met Plaintiff, have never been to Arizona, had nothing to do with Plaintiffs marriage to Mrs. DelCupps sister, Mihret, etc. Plaintiff has done nothing to challenge these facts. In other words, the Court began its evaluation backwards, by assuming the assertions of the DelCupps, i.e., the moving parties, to be true. In addition, the Court made an initial credibility determination in favor of the DelCupps, i.e., assuming them to be credible. As plaintiff shows below, one of the major issues in this case is the credibility of the DelCupps, especially Makda DelCupp. Therefore, for the Court at the outset of its analysis to assume that the DelCupps are credible is to usurp a legitimate function of the jury. Both of the foregoing errors, i.e., assuming the assertions of the moving party to be true and making an initial credibility determination in -19-

favor of the DelCupps, constitute abuses of discretion. Moreover, the Court initially focused on jurisdictional facts, which are completely irrelevant to the subject motion, since the Court ruled in May 2007 that it has jurisdiction.1 For example, the fact that the DelCupps have never met the plaintiff is completely irrelevant, since it is clear that the DelCupps know Mr. Dorsey and have communicated with him by telephone and email. Again, even if the DelCupps have never been to Arizona, that too is irrelevant. One conspiring to defraud an Arizona resident does not have to do it from within Arizona. Also, as noted above, the Courts conclusion that the DelCupps had nothing to do with plaintiffs marriage, based upon the assertions of the DelCupps, is backwards. It assumes the truth of facts alleged by the movant, rather than the truth of facts alleged by the non-movant. Finally, the Courts statement that Plaintiff has done nothing to challenge these facts, misses the mark. There was no reason at this juncture for the plaintiff to present facts that go to jurisdiction, since that would be a waste of everyones time. Instead, plaintiff presented facts and inferences that support the substance of his case. B. The Court Failed to Review the Evidence and the Inferences

In its Order, the Court reviewed only two facts from among those submitted by the plaintiff in opposition to the motion for summary judgment. Those facts consisted of the following: (i) As noted in the Courts order of May 7, 2007, the most that Plaintiff can

In its May 7, 2007 minute entry the trial court stated, The Court, with some reluctance , finds that the DelCupps have waived their argument that an Arizona court has no personal jurisdiction over them. (Emphasis added.) It is significant that the newly discovered evidence relating to the Cingular W ireless phone records shows that the DelCupps actually had contacts with the State of Arizona sufficient to allow the assertion of personal jurisdiction over them.

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show is that, on August 7, 2003, the day that Plaintiffs wife allegedly abandoned him, one of the DelCupp Defendants may have had four telephone calls on a cellular telephone to which Plaintiffs wife allegedly had access at the time when she, according to Plaintiff, was still in Arizona. (ii) Plaintiff also offers evidence that Mrs. DelCupp may have spoken to her sister a number of times from August 7 through August 27, 2007, through a Getachew Yeneneh in Aurora, Colorado, although the evidence is far from clear. (1) First Fact Cited by the Court

Significantly, the first fact is taken from the Courts ruling on Jurisdiction, which is no longer at issue. The Courts characterization of this evidence presented by plaintiff clearly does not apply the correct legal standard. Lets take it one phrase at a time. (a) The Court characterizes August 7, 2003, as the day plaintiffs wife

allegedly abandoned him. The Courts language is misleading, since it suggests that either the date is at issue or the fact that plaintiffs wife abandoned him is at issue. However, neither proposition is correct. There is no issue in this case as to the date on which Mihret abandoned Mick, it was August 7, 2003, period. The DelCupps have never put this at issue. In addition, there is no issue as to whether Mihret abandoned Mick. Mick has testified to this fact and the DelCupps have never disputed it. Their only dispute goes to the reasons why Mihret abandoned Mick. Therefore, for purposes of the motion for summary judgment, the Court must accept as true the fact that plaintiffs wife abandoned him on August 7, 2003. (b) The Court states that on August 7, 2003, one of the DelCupp

Defendants may have had four phone calls to plaintiffs wife. This, again, constitutes a failure of the Court to properly view the evidence. Plaintiff produced telephone records

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showing that four telephone calls were made from Makda DelCupps cell phone to the Cricket phone in the possession of Mihret on the morning of August 7, 2003. The DelCupps have never presented any evidence disputing the accuracy of the cell phone records. Therefore, the cell phone records speak for themselves and clearly show the calls were made. In addition, plaintiff did not learn until late in the case who actually used the DelCupp cell phone. It was not until Robert DelCupps deposition taken on August 2, 2007, that Mr. DelCupp finally admitted after extensive cross-examination that the cell phone was Makdas. This is information that the DelCupps had a duty under Rule 26.1 to disclose, it is not information that plaintiff should have had to spend thousands of dollars in attorneys fees and travel expenses to get at an out-of-state deposition. Moreover, during Makda DelCupps deposition, she did not deny making the phone calls to Mihret on the morning of August 7, 2003, rather, she testified at various times that she didnt know who made the calls or that she didnt remember who made the calls. (SOF.66)2 Plaintiff produced this portion of the deposition examination of Makda for the Court both in text form and in videotape form on a DVD. [See Docket #152 and Appendix 6] However, there is no indication in the record that the Court actually viewed the twenty minutes of DVD testimony of Makda, submitted by plaintiff. Based on the evidence submitted by plaintiff, any reasonable juror could infer that Makda Delcupp (using her own cell phone) called Mihret four times on the morning of August 7, 2003 (as shown by Makdas phone records). Once again,

References are made throughout this section to the Statement of Facts Supporting Plaintiffs Response to Defendants Motion for Summary Judgment. [Docket #149] SOF.66 refers to paragraph 66 of the Statement of Facts.

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reasonable inferences from the evidence must be accepted by the Court in ruling on a motion for summary judgment. The word may used in the Courts description above, has no place in the evaluation. (c) The Court states that Mihret allegedly had access to the Cricket

phone. The evidence presented by plaintiff is that Mihret had possession of Micks Cricket phone and took it with her when she left on August 7, 2003.3 (SOF.56) Mick called the Cricket phone on the afternoon of August 7, 2003, and received a return phone call from Mihret ten minutes later. (SOF.58) During that call, it sounded to Mick like Mihret was in a bus terminal or airport, which supports an inference that Mihret was traveling somewhere. Again, the DelCupps never challenged plaintiffs evidence that Mihret took Micks Cricket phone and had it in her possession on August 7, 2003. On this record, the Court must accept as true plaintiffs testimony that Mihret had possession of the Cricket phone. The proposition that Mihret had access to the Cricket phone is not a mere allegation, it is something that any reasonable juror could infer from the evidence. Moreover, it is something the trial court was required to accept as true in evaluating the motion for summary judgment. (2) Second Fact Cited by the Court

Once again, the Courts characterization of the evidence presented by plaintiff does not apply the correct legal standard. The Court states that Mrs. DelCupp may have spoken to her sister a number of times

Mick testified that when Mihret abandoned him on August 7, 2003, she took Micks Cricket phone with her. Mihret also took Micks personal immigration documents used to process the K3 visa for M ihret, along with personal photographs. (SOF.56)

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through a Getachew Yeneneh in Aurora, Colorado, although the evidence is far from clear. Plaintiff presented evidence through Cingular Wireless phone records of 40 telephone calls from Makda DelCupps cell phone to a number belonging to Getachew Yeneneh in Aurora, Colorado. (SOF.74 and 54) These telephone calls occurred from August 9, 2003 to August 26, 2003, when the calls to the Yeneneh number suddenly ceased.4 Plaintiff also presented evidence through Bell Canada phone records of a conference call that occurred on August 27, 2003. The call originated from North York, Ontario, Canada, from a number belonging to Mihrets brother, Loulseged Kahssay (Lou). Lou dialed Getachew Yenenehs number in Aurora, Colorado, and then dialed plaintiffs number in Arizona. Based on plaintiffs testimony, the conference call involved Lou, Mihret, and plaintiff. Based on the calling records, it is clear beyond any doubt that Mihret participated in the conference call on the land line located at the Yeneneh residence in Aurora, Colorado. Note that the Courts statement that phone calls were made through Getachew Yeneneh, implying that they went to the Yeneneh residence and were forwarded elsewhere is completely unsupported by the record and amounts to pure speculation. Moreover, this amounts to another attempt to view the evidence in a light most favorable to the movants, rather than the other way around. The DelCupps did not present any evidence to dispute the accuracy of the Bell Canada phone records, or to suggest that the calls made to the Yeneneh number were forwarded elsewhere. Finally, there is no evidence in the record that the Yeneneh phone line had a forwarding feature on it. The foregoing evidence presented by plaintiff clearly establishes that Mihret was in

Robert DelCupp testified at his deposition on August 2, 2007, that he did not make any of the 40 telephone calls that were made from the Cingular W ireless cell phone to the number belonging to Getachew Yeneneh. This evidence supports the inference that Makda DelCupp made the calls, since it was her phone.

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Aurora, Colorado on August 27, 2003. This is a fact that the DelCupps were under a legal duty to disclose in this litigation, but did not. In fact, they not only failed to disclose this fact, they repeatedly claimed Mihret was never in Colorado and that she returned to Ethiopia. Given the DelCupps complete lack of credibility on this issue, a reasonable juror could infer that Mihret traveled to Aurora, Colorado after leaving Mick on August 7, 2003. The unusual number of phone calls from Makdas cell phone to the Yeneneh number can be explained by Mihrets presence at the Yeneneh residence in Aurora during a three week period in August, after she abandoned Mick. This again is a reasonable inference that could be made by any juror, and does not amount to speculation or innuendo as the Court suggests. Rather, it is based on a web of circumstantial evidence from which jurors could derive reasonable inferences. C. Evidence of Advance Planning by the DelCupps (1) Purchase of Cingular Wireless Cell Phone

The Cingular Wireless cell phone records are the records relating to Makda Delcupps phone. The first page of those records, which is entitled Subscriber Information, shows that the cell phone was purchased by the DelCupps on August 5, 2003, which was two days before Mihret abandoned Mick. The phone was used once on August 6, 2003, and then was put into regular service on August 7, 2003. Newly discovered evidence shows that someone using the cell phone traveled from Denver to Phoenix and back on August 7, 2003. This cell phone was used to make the four calls to Mihrets Cricket phone on the morning of August 7, 2003. It was also used to make several calls to Arizona numbers later that same day. In addition, it was used to make the 40 calls to the Yeneneh number throughout the month of August 2003. Based upon the available evidence, it appears that the DelCupps purchased the Cingular Wireless cell phone -25-

specifically for use on the trip to Phoenix and to communicate with Mihret afterwards. This provided them with a new phone number that Mick Dorsey did not know, and therefore would have difficulty tracing. Any juror could reasonably infer from this evidence (1) that the DelCupps knew in advance that Mihret would be leaving Mick; (2) that the DelCupps were involved in assisting Mihret (i.e., in conspiring with her) and wanted to cover their tracks by using a new telephone number; and (3) that purchasing the Cingular Wireless cell phone constituted advance planning (i.e., an affirmative act) by the DelCupps in furtherance of the conspiracy with Mihret. Again, the Court must accept as true all reasonable inferences from the evidence submitted by plaintiff. (2) Travel From Denver to Phoenix on August 7, 2003

The fact that Makda or someone using Makdas cell phone traveled from Denver to Phoenix and back on August 7, 2003, provides further evidence of collusion between the DelCupps and Mihret. This trip clearly required advance planning, which again indicates that the DelCupps knew in advance of Mihrets plan to leave Mick. In addition, any reasonable juror could infer that the trip was specifically and intentionally arranged to assist Mihret in leaving her husband. In other words, this evidence supports an inference that the DelCupps conspired with Mihret in advance to assist Mihret in abandoning Mick, and then took affirmative steps to execute the planned conspiracy. This goes to the heart of plaintiffs case. (3) Makdas Mother in Aurora, Colorado

It is not a coincidence that Makda and Mihrets mother, who resides in Ethiopia, was staying with Makda in Aurora, Colorado when Mihret abandoned Mick. (SOF.84) Makda (dob -26-

9/5/1972) is eight years older than Mihret (dob 2/4/1981). (SOF.82-83) Therefore, when Mihret came to the United States, she was only 22 years old and without financial means, but her sister Makda was age 30 and already well established. It makes imminent sense that Makda and her mother both wanted to be available to provide support to Mihret after she abandoned Mick. Any juror could reasonably infer from the evidence that the DelCupps were involved in planning the timing of the mothers stay in Aurora to coincide with the time Mihret would arrive in the United States, leave Mick, and travel to Aurora. This further supports plaintiffs claim that the Delcupps conspired with Mihret to assist her in leaving Mick. D. The DelCupps Lack Credibility, Especially Makda DelCupp

The Court accepts the DelCupps testimony as credible and reliable. However, a reasonable juror would have more than enough evidence to conclude that the DelCupps have lied repeatedly throughout the course of this litigation. Determinations of credibility on the order of those at issue in this case are questions for the jury, not for the court. For example, Makda DelCupp testified at her deposition on August 2, 2007, that she didnt remember who had access to the Cingular Wireless cell phone (according to her husband it was her cell phone); that she didnt remember whether she and her husband had access to the cell phone; that she didnt remember whether anyone besides she and her husband had access to the phone; that she didnt remember who made four calls from her cell phone to the Cricket phone in Mihrets possession on the morning of August 7, 2003; that she didnt know who made any of the calls to Phoenix using her cell phone on August 7, 2003; that she didnt remember whether she or her husband had made any of the calls to Phoenix that morning; that she didnt remember whether she talked to Mihret on the day Mihret left her husband (Micks -27-

testimony establishes that Makda did talk to Mihret this date)5; that she didnt remember whether she talked to Mihret within a month of the time Mihret left her husband; that she didnt remember the last time she talked with Mihret; that she didnt remember whether she talked to Mihret within the past year; that she didnt remember whether she talked with Mihret in the WEEK prior to the deposition; that she didnt remember whether she talked with Mihret in the past month; that she didnt remember whether she talked with Mihret in the past six months; that she didnt remember whether her mother, who was staying with her in Denver, had any contact with Mihret after Mihret left her husband; that she didnt remember anything about her one month trip to Ethiopia in 2001 to celebrate her marriage with her family, including whether she visited her sister Mihret, her sister Kidist, her sister Bethlehem, her brother Loulseged, her mother, or her father; that she may have called Mr. Yenenehs telephone number but she didnt remember; that she didnt know whether the number 303-353-3192 was Mr. Yenenehs number; and that Mihret returned to Ethiopia but Makda didnt know when or how. Makda DelCupps alleged lack of memory about the foregoing matters stretches credulity. Any juror who heard Makda DelCupp testify that she didnt remember who had access to her own cell phone, or that she didnt remember whether she talked to Mihret within the past week, or that she didnt remember any family members she saw on a family trip to Ethiopia in 2001, could readily conclude that Mrs. DelCupp is LYING. (SOF.66, 67, 75, 84, 85, 87, and 88) In addition, plaintiff provided to the Court a videotape version of Makdas testimony on DVD. [See Docket #152 and Appendix 6] This included approximately
5

W hen Mick spoke with Makda by telephone on August 7, 2003, it was clear that Makda had previously spoken with Mihret. (SOF.63) In fact, Makda made a threatening remark to M ick, saying, If you try to find her [i.e., Mihret], Im going to get you.

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20 minutes of clips that were also included in written form in Plaintiffs Statement of Facts. There is no indication in the record that the Court actually viewed the DVD. This was provided to the Court for the specific purpose of showing that there is much more to the testimony than the words. For example, Makda wore a hat pulled down on her forehead, along with dark sunglasses, throughout the deposition. She also had her hair fixed in a way so that it fell forward partially obscuring her face. The overall effect created by this appearance was that the witness was intentionally attempting to hide her identity, and this would be unmistakable to any reasonable juror. In addition, anyone who actually watched the videotape would note that Makda took lengthy periods of time before answering, in order to write down each question. She did this even when the question called for a simple yes or no answer. The overall effect created by the combination of the witnesss appearance and the rhythm of her answers was one of contempt for the truth, and this would be unmistakable to any reasonable juror. Suffice it to say that if the videotape of Makda DelCupps deposition testimony were played for jurors, they would readily conclude that this witness has something to hide and is not being truthful in her answers. Moreover, the cross-examination of this witness in the courtroom using cuts from the videotape testimony would be devastating in short order. Judging the credibility of this key witness by viewing her demeanor while testifying is a function for the jury, not the Court. Summary judgment should not be granted when such a crucial credibility determination must be made. E. The Evidence Shows that Mihret Traveled to Aurora, Colorado

The telephone records obtained by plaintiff during discovery, prove conclusively that Mihret was in Aurora, Colorado on August 27, 2003. Moreover, as stated above, it is reasonable -29-

to infer that Mihret traveled to Aurora after abandoning Mick on August 7, 2003. For example, newly discovered evidence proves that someone using Makdas cell phone traveled from Denver to Phoenix and back on August 7, 2003. It makes sense that this person assisted Mihret in abandoning Mick and in traveling to Aurora, Colorado. Also, during a telephone call between Mihret and Mick on August 7, 2003, it sounded to Mick like Mihret was in a bus terminal or airport, i.e., was traveling somewhere. In addition, several other facts in the record support an inference that Mihret traveled to Aurora, Colorado. First, Mihrets only sibling in the United States, i.e., Makda DelCupp, lives in Aurora. Second, Mihrets mother was visiting Makda in Aurora at the time, so by traveling to Aurora, Mihret could have seen and been supported by both her sister and her mother. Third, Mihret had no money available to pay for her travel, but Mihret knew that Makda was in a position to help her. For example, in June of 2002, when Mihret asked Mick in an email for money to pay the guy to help get her out of Ethiopia, Mihret said that her sister (i.e., Makda) and brother (i.e., Lou) would help repay the money. (SOF.44) Fourth, Makdas refusal to answer questions at her first deposition about financial assistance given to Mihret support an inference that Makda did in fact provide such assistance. (See below.) This supports an inference that Mihrets destination was Aurora, which is where Makda lives. Fifth, Makda spoke with Mihret four times on the morning that Mihret abandoned Mick. This supports an inference that Makda knew in advance that Mihret was leaving Mick. It also provided Makda an opportunity to participate in and assist in Mihrets plan to leave Mick. Sixth, the contention that Makda knew Mihret was leaving Mick is further supported by Micks testimony that when he spoke with Makda later that day, she clearly knew that Mihret had left. In fact, Makda verbally threatened to get Mick if he attempted to find Mihret. This suggests -30-

that Makda knew where Mihret was going, and could determine whether Mick was attempting to find her. Seventh, the burst of 40 phone calls from Makdas cell phone to the Yeneneh number began on August 9, 2003, which was two days after Mihret abandoned Mick. Mihret would have had time to travel to Aurora and settle in at the Yeneneh residence by August 9, 2003. By staying at the Yeneneh residence, Mihret could remain out of sight should the authorities check on her at the DelCupp residence, which they did on August 16, 2003. For all of the foregoing reasons, the evidence supports a reasonable inference that Mihret traveled to Aurora, Colorado upon abandoning Mick. F. Makda provided assistance to Mihret.

Mihret had no money, credit card, debit card, or financial means of her own on August 7, 2003, which she could have used to pay for travel, food, or shelter. Therefore, Mihret had to have received financial assistance from someone else in order to abandon Mick. (SOF.57) This testimony by Mick must be accepted as true by the Court for purposes of the motion for summary judgment. Therefore, the Court must accept as true the fact that Mihret had no financial means whatsoever to leave Mick on August 7, 2003, and had to have the help of a third party. Makda DelCupps testimony during her telephonic deposition on January 31, 2007 fit a particular pattern. Whenever Makda was comfortable answering No, she did so. However, when she was uncomfortable and the answer appeared to be a Yes, she refused to answer the question. For example, when asked whether she knew Getachew Yeneneh, which we now know should have been answered, Yes, Makda refused to answer. (SOF.70-71) Makda also refused to answer several questions relating to financial assistance provided to Mihret. The pattern in -31-

answering these questions strongly suggests that the answers should have been, Yes. (SOF.69) In any event, a reasonable juror certainly could reach this conclusion. In other words, a reasonable juror could conclude that the DelCupps provided financial assistance to Mihret. The newly discovered evidence of the trip from Denver to Phoenix further supports this conclusion. G. Evidence of Makdas modus operandi.

Makda Delcupp married a U.S. Citizen in December of 1999 and subsequently gained entry to the United States. Therefore, Makda understands the process involved in getting into the United States as the spouse of a U.S. Citizen. (SOF.42) In the winter of 2003, Makda DelCupp told Mick that she was planning on having her sister, Kidist, marry a gay guy from the United States, so that Kidist could get into the United States and get alien spousal benefits. The plan was for Kidist to then divorce her gay spouse. This plan that Makda had for Kidist is similar to the plan plaintiff alleges Makda had for Mihret. More importantly, this plan is evidence of an M.O. used by Makda when it comes to getting a sister into the United States, namely, get the sister to marry a U.S. citizen under false pretenses, get the sister into the United States as the spouse of a U.S. citizen, then terminate the marriage. The Court must accept Micks testimony on this issue as true. H. U.S.C.B.P. has no record showing Mihret departed the United States.

Throughout this litigation, the DelCupps have insisted that Mihret returned to Ethiopia shortly after leaving Mick (though claiming they dont know when or how). That is not true. Plaintiff subpoenaed from United States Customs and Border Protection all I-94 departure records relating to Mihret Kahssay. The return on the subpoena showed that there are none. -32-

When Mihret entered the United States at the Newark, New Jersey, Port of Entry, an I-94 arrival record was generated. If Mihret had departed the United States on any airline or carrier of any kind, an I-94 departure record would have been generated. Based upon this evidence, any reasonable juror could conclude that Mihret did not return to Ethiopia as the DelCupps claim. This is one more example of misleading information the DelCupps have fed the plaintiff during the course of this litigation. (I) Issues of Material Fact Regarding a Conspiracy to Defraud.

The law relating to a conspiracy to defraud is set forth in McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985). Based upon that case and by analogy to it, the elements of a conspiracy to defraud a plaintiff via a fraudulent marriage include: 1. 2. An unlawful agreement; With the specific intent of each member of the conspiracy to defraud the plaintiff out of money via a fraudulent marriage; 3. 4. Acts committed pursuant to the unlawful agreement; Damages caused by the acts committed pursuant to the unlawful agreement.

See, McElhanon v. Hing, supra, 151 Ariz. at 396. On this record, any juror could reasonably conclude that the DelCupps were involved in a conspiracy with Mihret, to assist her to enter the United States as the wife of Mick Dorsey, to assist her in abandoning Mick at the first opportunity, and to assist her in traveling to Aurora, Colorado. Moreover, the evidence relating to planning by the DelCupps shows that the conspiracy was in place prior to Mihret entering the United States, which is sufficient to establish plaintiffs cause of action. In addition, there is evidence of acts taken by the DelCupps in -33-

furtherance of the conspiracy, e.g., the purchase of the Cingular Wireless cell phone on August 5, 2003 which was used to contact Mihret. While Mick was planning for a future with his new wife, Mihret and the DelCupps knew it was all a fraud. As a result of this conspiracy, Mick suffered both economic and non-economic damages. For the foregoing reasons, the Court of Appeals should find that the trial court either erred or abused its discretion in granting summary judgment to the DelCupps on plaintiffs cause of action for conspiracy to defraud. As a result, the case should be remanded for further proceedings, including a trial on the cause of action for conspiracy to defraud. 3. The Court erred or abused its discretion in denying plaintiffs alternative

motion for leave to amend the complaint. When plaintiff responded to the DelCupps motion for summary judgment, plaintiff also requested in the alternative leave to file an amended complaint. [Docket #150] Rule 15 of the Arizona Rules of Civil Procedure provides in pertinent part: (a) Amendments. 1. A party may amend the partys pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within twenty days after it is served. Otherwise, a party may amend the partys pleading only by leave of court or by written consent of the adverse party. Leave to amend shall be freely given when justice requires. (Emphasis added.) As this rule provides, amendment is to be freely granted when justice so requires. While leave to amend is discretionary with the trial court, it should be liberally granted. MacCollum v. Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097 (App. 1996); Owen v. Superior Court, 133 Ariz. 75, 79, 649 P.2d 278 (1982). Trial on the merits of the claim is favored. Owen v. Superior

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Court, supra. In lieu of granting summary judgment to the DelCupps, the trial court should have granted leave to plaintiff to amend the complaint. This would have allowed plaintiff to plead with greater specificity, given the information that had been accumulated after two years of discovery. This also would have provided plaintiff a fair opportunity to replead his case, so it could be tried on the merits. Since leave to amend should be freely granted in the interests of justice, and since trial on the merits if favored, plaintiffs motion for leave to amend should have been granted. For the foregoing reasons, the Court of Appeals should remand the case to the trial court for further proceedings, with instructions to grant plaintiff leave to file an amended complaint. 4. The Court erred or abused its discretion in ruling on plaintiffs Request

forClarification of Minute Entry Order Filed 3/26/2007, which was filed April 2, 2007. On December 26, 2006, plaintiff served a request for production of documents on the DelCupps. Request no. 7 sought production of the following financial records: Any and all bank statements, credit card statements, personal ledgers, cancelled checks, check stubs, receipts, wire transfer documents, Western Union documents, money orders or evidence thereof, cashiers checks or evidence thereof, and evidence of cash transfers of any kind, made by you during the period from February 2002 to the present, to, on behalf of, or for the benefit of Mihret Kahssay. In response, the DelCupps filed a motion for a protective order. [Believed to be part of Docket #87] On March 26, 2007, the trial court entered a Minute Entry Ruling [Docket #97] on the motion for protective order, which stated the following with respect to the request for financial records: -35-

The request is broad and potentially intrusive of Defendants privacy. It is also poorly phrased, i.e., financial documents evidencing payments to Defendant Makda Delcupps sister (not clear to the Court how financial documents, as such, would evidence payments). If Defendants are in possession of any financial documents for the defined period which say or specifically relate or refer to Mihret Kahssay on their face, they will be produced to the Court pursuant to the in camera inspection procedure described below. (Emphasis added.) On April 2, 2007, plaintiff filed a Request for Clarification of Minute Entry Order Filed 3/26/07. [Docket #101] This asked the Court to clarify its Minute Entry Ruling as follows: (1) Plaintiff requests the Court to clarify whether this order means that financial documents need not specifically say Mihret Kahssay on their face in order to be discoverable, if in fact they specifically relate in some way to Mihret Kahssay. Also, are defendants required to inform the Court which portion of a document (e.g., which payment shown on a credit card statement) specifically relates to Mihret Kahssay? (2) Plaintiff requests the Court to clarify whether this order means that financial documents (e.g., bank statements, credit card statements, or wire transfer documents) specifically relate to Mihret Kahssay if they show payments or financial transfers made to, on behalf of, or for the benefit of Mihret Kahssay. Does this include financial documents showing payments made to third parties (e.g., an airline, bus company, car rental company, hotel, telephone service provider, etc.), if the payments are for the benefit of Mihret Kahssay? On April 2, 2007, the trial court entered a minute entry stating, Plaintiffs Request for Clarification of Minute Entry Order Filed 3/26/2007 is denied. Only documents which say, mention or refer to Mihret Kahssay need be produced. [Docket #102] The effect of this ruling was to limit production of the DelCupps financial records to documents which had the name, Mihret Kahssay, somewhere on them. This is completely ridiculous. For example, a credit card statement showing a charge for an airline ticket for Mihret Kahssay may not contain the name Mihret Kahssay on it. Pursuant to the trial courts order, such a credit card charge incurred by the DelCupps for the benefit of Mihret Kahssay would not have to be produced. Therefore, the trial courts ruling placed an unreasonable restriction on plaintiffs ability to obtain discovery. -36-

Pursuant to Rule 26(b) of the Arizona Rules of Civil Procedure, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. In this case, plaintiff sought to discover financial information from the DelCupps, which would show that they helped Mihret abandon her husband. For example, plaintiff sought evidence of payments made for Mihrets airfare from Phoenix to Denver. As pointed out above, that evidence does not always come wrapped up in a bow with Mihrets name on it. Rather, it may require disclosure by the DelCupps as to what a particular credit card charge or bank charge was for. Therefore, the trial courts ruling placed an unreasonable restriction on discovery, and deprived plaintiff of an opportunity to obtain relevant evidence in this case. Moreover, given the newly discovered evidence, it appears certain that the DelCupps paid for airline tickets from Phoenix to Denver and that those payments would be discoverable. For the foregoing reasons, the Court of Appeals should remand this case for further proceedings, with instructions to allow discovery into financial records that evidence payments made by the DelCupps for the benefit of Mihret Kahssay. 5. The Court erred or abused its discretion in denying Plaintiffs Motion for

Sanctions for Failure of Defendants to Appear for Their Depositions. Pursuant to Rule 37(f), Arizona Rules of Civil Procedure, plaintiff sought monetary sanctions in the amount of $1,559.49 against defendants Makda DelCupp and Robert DelCupp, for their failure to appear for their depositions noticed for Thursday, November 16, 2006. [Part -37-

of Docket #67] The depositions of the defendants were noticed at a location in Denver, Colorado, approximately 7 miles from the DelCupp residence. Plaintiff incurred significant travel expenses and attorneys fees in order to take these depositions, but the DelCupps chose not to appear. However, on the following day, Robert DelCupp appeared at the very same location to defend the deposition of plaintiffs private investigator. The notice for the private investigators deposition was served along with the notices for the DelCupps depositions, so the DelCupps cannot contend that they failed to receive notice or that they did not know where the depositions were to take place. Moreover, in order to make sure that the DelCupps understood the importance of attending their depositions, plaintiff forwarded a letter to the Delcupps on October 31, 2006, and forwarded a copy to the Court. The letter contains the following pertinent language: As you know, I have scheduled your depositions on November 16, 2006, in Denver, Colorado. The depositions are scheduled to take place in the Frisco Conference Room, Holiday Inn Hotel, 15500 E. 40th Avenue, Denver, CO 80239. Mrs. Delcupps deposition is scheduled to begin at 8:30 a.m., and Mr. Delcupps deposition is scheduled to begin at 1:00 p.m. Since you are the defendants in this case, I expect you to appear for these depositions at the scheduled time and place. By scheduling these depositions in Colorado, I am saving you the expense of coming to Arizona to give deposition testimony. The only way that I can obtain evidence needed to respond to your pending motion for summary judgment is to take these depositions in a timely fashion. Therefore, if you have any objections to the procedure I am following, please notify me immediately. In that case, I will seek prompt intervention by the Court, so that I can obtain the evidence I need. If either of you should fail to appear for your deposition at the scheduled time and place, we will ask the court reporter to make a record of your non-appearance. I will then file a motion with the Court for monetary sanctions, including court reporter fees, travel expenses, and/or attorneys fees incurred to take these depositions. In addition, I will ask the court to compel your attendance at a deposition in Arizona, and will request the entry of default if you should fail to appear. Please consider this letter to be a good faith effort to avoid a discovery dispute by resolving issues in advance of these depositions. -38-

This letter was forwarded to the Delcupps via certified mail, return receipt requested. Makda DelCupp signed the return receipt for this letter on November 3, 2006. A copy of the certification and return receipt were attached as Exhibit 9 to plaintiffs motion. As the foregoing indicates, plaintiff put the DelCupps on notice two weeks prior to the depositions (1) that plaintiff needed to obtain deposition testimony in order to respond to the pending motion for summary judgment, and (2) that plaintiff would file a motion for monetary sanctions if the DelCupps failed to appear for their depositions. In the face of this, the DelCupps made a calculated decision not to appear for their depositions. Rule 37(f) of the Arizona Rules of Civil Procedure provides in pertinent part: If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorneys fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c). (Emphases added.) Paragraphs (A), (B), and (C) of subdivision (b)(2) of Rule 37, referenced above, provide for orders allowing the following sanctions: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. -39-

(Emphases added.) In this case, the requested sanctions include reasonable travel expenses to take the depositions, reasonable attorneys fees, and the cost of the conference room rental for the day during which the depositions were to be taken. These expenses total $1,559.49, and are itemized as follows: Date 11/15-17/2006 11/15-16/2006 11/16/2006 11/15-16/2006 Item Round-trip airfare for attorney, Phoenix to Denver Hotel room/meals for attorney at Denver Holiday Inn Conference room rental at Denver Holiday Inn Attorneys fees for depositions in Denver Total Cost $ 183.61 $ 243.38 $ 100.00 $1,032.50 $1,559.49

An email receipt from United Airlines for the round-trip airfare from Phoenix to Denver was attached as Exhibit 10 to plaintiffs motion. A receipt for the hotel room and meal charges was attached as Exhibit 11 to plaintiffs motion. Exhibit 12 to plaintiffs motion contained the Affidavit of Craig Stephan, which provided evidence for the conference room charges and the itemized attorneys fees incurred. Plaintiffs motion for sanctions was denied on 5/5/2008, in the trial courts Minute Entry Judgment. [Docket #173] However, for all of the reasons set forth herein, the motion should have been granted. Therefore, the Court of Appeals should remand this case with instructions to grant the motion for sanctions and to recalculate the judgment.

CONCLUSION
For all of the foregoing reasons, the Court of Appeals should remand this case to the trial court for further proceedings, with the instructions that are more specifically set forth with respect to each issue addressed above. -40-

RESPECTFULLY SUBMITTED this 2nd day of September, 2008.

/s/ Craig Stephan Craig Stephan Attorney for Plaintiff/Appellant

CERTIFICATE OF MAILING Undersigned counsel certifies that he served two copies of the foregoing Appellants Opening Brief on the appellees by mailing said copies, postage prepaid, this 2nd day of September, 2008, to: Robert Michael DelCupp III Makda Tewoldemedhin Kahssay DelCupp P. O. Box 470906 Aurora, CO 80047 [Appellees Pro Per]

/s/ Craig Stephan Craig Stephan Attorney for Plaintiff/Appellant

CERTIFICATE OF COMPLIANCE Undersigned counsel certifies this 2nd day of September, 2008, that the word count and page limits contained in Appellants Opening Brief comply with the requirements of the Arizona Rules of Civil Appellate Procedure.

/s/ Craig Stephan Craig Stephan Attorney for Plaintiff/Appellant

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APPENDIX 1 Minute Entry Judgment of 5/5/2008

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Michael K. Jeanes, Clerk of Court *** Filed *** 05/07/2008 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 05/05/2008

JUDGE PENDLETON GAINES

CLERK OF THE COURT A. Beery Deputy

KERMICK Z DORSEY v. ROBERT MICHAEL DELCUPP III, et al.

CRAIG A STEPHAN

ROBERT MICHAEL DELCUPP III PO BOX 470906 AURORA CO 80047

MAKDA TEWOLDEMEDHIN KAHSSAY DELCUPP PO BOX 470906 AURORA CO 80047

MEMORANDUM, ORDER AND FINAL JUDGMENT

All motions which the parties have requested leave to file are accepted for filing and disposition. With the exception of Plaintiffs motion for reconsideration of the ruling on Plaintiffs motion for summary judgment, the motions are briefed and at issue.1 Where oral argument was requested, it would not be helpful, is not necessary (particularly given the extended nature of the written submissions and the history of this case) and is waived pursuant to Civil Rule 7.1(c)(2). _____ 1 The Court did not order a response to Plaintiffs motion for reconsideration. Docket Code 049
Form V000A

Page 1

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 05/05/2008

The motions will be denied. Since neither party submitted a proposed form of judgment by April 10, 2008, as permitted by the order of March 5, 2008, the Court will enter final judgment. MEMORANDUM

The parties briefing raises only a few issues which merit discussion. New interpretation of cellular telephone records. Plaintiffs counsel says that, after he received the Courts ruling on the cross-motions for summary judgment (order dated March 5, 2008), he and his client spent considerable time reviewing all the evidence. This review included contacting a private investigator in Houston, a cell phone expert at AT&T and a cell phone expert in Arkansas. Plaintiff and his counsel later learned, according to them, that a certain code on Ms. DelCupps cellular telephone bills established that her cellular telephone (and, by inference, she) was in Phoenix on the day her sister left Mr. Dorsey. The Court has carefully reviewed Plaintiffs submissions on this issue, Defendants analysis of same and Plaintiffs reply. The Court agrees with Defendants that the proffered evidence is untimely, confusing, inconclusive and inconsistent. It includes multiple hearsay. It is non-probative and irrelevant. A party opposing a motion for summary judgment is obligated to come forward with evidence to oppose the motion in a timely fashion or, if he or she cannot, to request relief so that such evidence can be obtained. Here, Plaintiffs new evidence (actually a new interpretation of previous evidence) was not obtained until long after the discovery cutoff of November 30, 2007. Plaintiff filed this case on January 10, 2006. The first discovery completion deadline was February 28, 2007. It was later reset, twice, finally to November 30, 2007. On September 10, 2007, the Court granted Plaintiffs oral Rule 56(f) request and permitted Plaintiff to respond to Defendants pending motion for summary judgment after the completion of all discovery. The Defendants cellular telephone records have been a central target of Plaintiffs discovery since the beginning of the case. Plaintiff has shown no reason why his new evidence could not and should not have been discovered sooner. Docket Code 049
Form V000A

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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 05/05/2008

The proffered, new interpretation of the telephone records does not raise a factual issue or an inference from which a jury could conclude that Defendants conspired to defraud Plaintiff or committed an Arizona RICO predicate act. Sanctions. Plaintiff requests a ruling on his previously deferred request for sanctions against Defendants for failure to appear at their initially-scheduled depositions. Defendants, in turn, request sanctions against Plaintiff under A.R.S. 12-549 for filing a frivolous lawsuit. The Court will not and need not recite the extended, tortured procedural history of this case. The Court was flooded with motions from both sides. Plaintiff, as well as Defendants, violated rules of procedure, defaulted in discovery obligations and responses and made frequent and unnecessary applications to the Court for relief against the other sides alleged defaults. The case was no model of procedural perfection. The Court denied Defendants request for sanctions under A.R.S. 12-549 in its order of March 5, 2008. Defendants motion for reconsideration raises no new issues. Plaintiff did abandon virtually all of his theories of liability in the face of Defendants motion for summary judgment. Plaintiff over-discovered the case while neglecting to honor his own disclosure and discovery obligations. Plaintiff points out that Arizona law precludes an award of fees to nonlawyers. Plaintiffs request for sanctions arises from Defendants failure to appear for their initially-noticed depositions in Denver, Colorado. The matter required Court intervention and was satisfactorily resolved. Defendants legal reasons for not appearing were marginally persuasive, at best. Plaintiffs counsel was in Denver for two other depositions, which did occur. The Court deferred ruling on Plaintiffs motion for sanctions at the time and advised Plaintiff that he could renew his request after verdict or judgment. Plaintiff has now done so. In the totality of the circumstances of this case, and in the exercise of its discretion, the Court denies both motions for sanctions. Costs. Plaintiffs objections to Defendants requested costs will be sustained in part, and Defendants will be allowed to recover their taxable costs in the amount of $281.00 (appearance fee and subpoenas).

Docket Code 049

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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 05/05/2008

ORDER

IT IS ORDERED: 1. Plaintiffs motion for reconsideration of ruling on Defendants motion for summary judgment is denied. 2. Plaintiffs motion for additional disclosure and discovery is denied.

3. Plaintiffs request for ruling on pending motion for sanctions is treated as a renewed request for sanctions pursuant to the Courts order of July 12, 2007, and is denied. 4. is denied. 5. Defendants motion for attorneys fees and for reconsideration of A.R.S. 12-349

Defendants are awarded taxable costs in the amount of $281.00.

JUDGMENT

IT IS ORDERED, ADJUDGED AND DECREED as follows: 1. Plaintiffs complaint and Defendants counterclaims be, and they are hereby, dismissed on the merits. 2. Defendants will have and recover judgment against Plaintiff in the amount of $281.00 as and for their taxable costs incurred herein. 3. 58(a). DATED: May 6, 2008 /S/ JUDGE PENDLETON GAINES PENDLETON GAINES JUDGE OF THE SUPERIOR COURT Docket Code 049
Form V000A

Directing the clerk to enter this Judgment as a final judgment pursuant to Rule

Page 4

APPENDIX 2 Minute Entry Ruling of 3/5/2008

-43-

Michael K. Jeanes, Clerk of Court *** Electronically Filed *** 03/07/2008 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 03/05/2008

JUDGE PENDLETON GAINES

CLERK OF THE COURT A. Beery Deputy

KERMICK Z DORSEY v. ROBERT MICHAEL DELCUPP III, et al.

CRAIG A STEPHAN

ROBERT MICHAEL DELCUPP III PO BOX 470906 AURORA CO 80047

MAKDA TEWOLDEMEDHIN KAHSSAY DELCUPP PO BOX 470906 AURORA CO 80047

UNDER ADVISEMENT RULING Defendants motion for summary judgment on Plaintiffs complaint will be granted. Plaintiffs alternative motion for leave to amend complaint will be denied. Plaintiffs motion for summary judgment on Defendants counterclaims will be granted. Plaintiffs Complaint In his response, Plaintiff has abandoned all claims except those asserted in Count One (Arizona RICO) and Count Four (described by Plaintiff as essentially a claim for Conspiracy to Defraud). Under the Courts scheduling orders, all disclosures and discovery are concluded. At Plaintiffs request, the time to respond to Defendants motion for summary judgment was extended until after the discovery completion date. Docket Code 019
Form V000A

Page 1

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 03/05/2008

Plaintiffs counsel describes Plaintiffs case as consisting of circumstantial evidence. It does not rise to that level. It consists of speculation and innuendo. The DelCupps have consistently maintained and stated under oath that they never met Plaintiff, have never been to Arizona, had nothing to do with Plaintiffs marriage to Mrs. DelCupps sister, Mihret, etc. Plaintiff has done nothing to challenge these facts. As noted in the Courts order of May 7, 2007, the most that Plaintiff can show is that, on August 7, 2003, the day that Plaintiffs wife allegedly abandoned him, one of the DelCupp Defendants may have had four telephone calls on a cellular telephone to which Plaintiffs wife allegedly had access at a time when she, according to Plaintiff, was still in Arizona. Plaintiff also offers evidence that Mrs. DelCupp may have spoken to her sister a number of times from August 7 through August 27, 2007, through a Getachew Yeneneh in Aurora, Colorado, although this evidence is far from clear. Noticeably absent and missing from Plaintiffs colorful tales of Mrs. DelCupps family in Ethiopia and their efforts to bring various sisters to the West is evidence of any kind that either of the DelCupps was involved in activity or actions directed toward Plaintiff. On this record, they were not. There is no submissible jury issue. There are no facts or inferences from facts which support Plaintiffs theories. There is no evidence of theft (i.e., receipt of property or services by the DelCupps) or participation in marriage fraud, both of which Plaintiff alleges as RICO predicate acts. There is no evidence of a pattern of racketeering or any threat of continued criminal activity. There is nothing to suggest the DelCupps were involved in a conspiracy to defraud. Plaintiffs alternative motion to amend his complaint to plead [his] causes of action with greater specificity will be denied as moot and futile. It is moot because Plaintiff has addressed these issues, as have Defendants, in the current briefing. It is futile because the issue now is not pleading, but whether there are facts sufficient to withstand Defendants motion. There are none. Defendants Counterclaims The Court agrees with Plaintiff that the Defendants counterclaims are not meritorious and should be dismissed. Whether Plaintiffs lawsuit qualifies as malicious prosecution must be determined in a separate action. Plaintiffs statements made in litigation are per se privileged. Plaintiffs actions do not constitute the sort of extreme and outrageous conduct necessary to support imposition of tort liability. The request for sanctions under A.R.S. 12-349 is not supported in this record. Docket Code 019
Form V000A

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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 03/05/2008

ORDER

IT IS ORDERED: 1. 2. 3. Granting Defendants motion for summary judgment. Denying Plaintiffs alternative motion for leave to amend complaint. Granting Plaintiffs cross-motion for summary judgment on counterclaims.

4. Either party wishing to submit a form of judgment to be entered with the Court consistent with this order may submit such not later than April 10, 2008. Failing submission of an appropriate form of judgment, the Court will, on its own motion, enter a judgment of dismissal of all claims and counterclaims asserted in this case with prejudice. 5. For the purposes of an award of taxable costs, in the totality of the circumstances, the Court finds the Defendants to be the prevailing parties.

Docket Code 019

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APPENDIX 3 Minute Entry of 4/2/2007

-44-

Michael K. Jeanes, Clerk of Court *** Electronically Filed *** 04/04/2007 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2006-000439 04/02/2007

JUDGE PENDLETON GAINES

CLERK OF THE COURT A. Beery Deputy

KERMICK Z DORSEY v. ROBERT MICHAEL DELCUPP III, et al.

CRAIG A STEPHAN

ROBERT MICHAEL DELCUPP III 1846 SO PAGOSA WAY AURORA CO 80017

MAKDA TEWOLDEMEDHIN KAHSSAY DELCUPP 1846 S PAGOSA WAY AURORA CO 80017

MINUTE ENTRY

Plaintiffs Request for Clarification of Minute Entry Order Filed 3/26/2007 is denied. Only documents which say, mention or refer to Mihret Kahssay need be produced.

Docket Code 019

Form V000A

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APPENDIX 4 Cingular Wireless Cell Phone Records

-45-

APPENDIX 5 AT&T Compliance Department Fax

-46-

APPENDIX 6 DVD With Clips of Makda DelCupps Deposition Taken 8/2/2007

-47-

NOTICE:

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

DIVISION ONE FILED: 02/11/2010 PHILIP G. URRY,CLERK BY: GH

KERMICK Z. DORSEY, Plaintiff/Appellant, v. ROBERT MICHAEL DELCUPP, III, and MAKDA TEWOLDEMEDHIN KAHSSAY DELCUPP, husband and wife, Defendants/Appellees.

) ) ) ) ) ) ) ) ) ) ) )

1 CA-CV 08-0472 DEPARTMENT D MEMORANDUM DECISION

Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) FILED 02-11-2010

Appeal from the Superior Court in Maricopa County Cause No. CV2006-000439 The Honorable F. Pendleton Gaines, Judge AFFIRMED

Craig A. Stephan Attorney for Plaintiff/Appellant Robert and Makda DelCupp In Propia Persona

Scottsdale Aurora, CO

G E M M I L L, Judge 1 Kermick Z. Dorsey (Dorsey) appeals from the trial

courts grant of summary judgment in favor of Robert DelCupp

(Robert) DelCupps). his motion

and

Makda

DelCupp

(Makda)

(collectively,

Dorsey argues the trial court erred (1) in denying for additional disclosure for and discovery, judgment, (2) (3) in in

granting

the

DelCupps

motion

summary

denying his motion for leave to amend the complaint, (4) in its ruling on his request for clarification, and (5) in denying his motion for sanctions. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND 2 agency in Dorsey 2002. met Mihret Kahssay (Mihret) from the via an online to

Dorsey

traveled

United

States

Ethiopia, where Mihret lived, and married her on November 17, 2002. After returning alone to the United States, Dorsey

obtained a K-3 visa for Mihret.

At all relevant times, Mihrets

sister, Makda, has resided in Colorado with her husband, Robert. Mihret came to the United States on July 19, 2003. On August 7,

2003, Mihret left Dorsey, and Dorsey has not seen Mihret since. Their marriage was annulled on May 18, 2005. 3 On January 10, 2006, Dorsey filed a complaint against

the DelCupps and some of Mihrets other relatives setting forth eight causes of action.1 Dorsey alleged the defendants

The eight causes of action were racketeering, slander, intentional infliction of emotional distress, aiding and abetting tortious conduct, willful or wanton conduct (aggravated negligence), negligence per se, negligence, and negligent infliction of emotional distress.

fraudulently induced Mihret to marry Dorsey2 and then facilitated Mihrets abandonment of him. The DelCupps filed an answer

denying any involvement in facilitating Mihrets abandonment or disappearance and asserted counterclaims for the filing of a malicious lawsuit, defamation and emotional distress. They

subsequently filed a motion to dismiss alleging that the court lacked personal jurisdiction over them and that any fraud claims were barred by the statute of limitations. motion. 4 The court denied the

Thereafter, the parties engaged in discovery. On June 29, 2006, the court dismissed the action

against all defendants who had not been served, leaving only the DelCupps in the case. judgment. The DelCupps filed a motion for summary

The court limited the DelCupps motion to the issue

of whether there was personal jurisdiction over them. 5 Dorsey scheduled depositions of the DelCupps in

Colorado and the DelCupps failed to appear. sanctions, on which the court deferred ruling. 6 On January 10, 2007, the court

Dorsey moved for

issued

an

order

allowing Dorsey to subpoena the DelCupps telephone records from Cingular Wireless for the period August 1, 2003 through

In his Response to Motion to Quash, Dorsey alleges that the gist of his action is that family members colluded against Plaintiff to induce him to marry Mihret . . . in order to use Plaintiff to facilitate getting Mihret out of Ethiopia to the west.

September 30, 2003.

Additionally, Dorsey sought discovery from

the DelCupps of financial records evidencing payment to or on behalf of Mihret Kahssay from February 1, 2002, to September 30, 2003. The court ordered that such financial records which say

or specifically relate or refer to Mihret Kahssay on their face be produced to the court in-camera. clarification, which was denied. 7 On May 7, 2007, the court issued a ruling finding Dorsey filed a motion for

there was personal jurisdiction over the DelCupps because they filed a permissive counterclaim. The court suspended the

remainder of the DelCupps motion for summary judgment. 8 be On June 15, 2007, the court ordered all discovery to concluded by November 15. On August 27, the DelCupps

requested leave of court to file a motion for summary judgment, which the court subsequently accepted for filing on September 10. 2007, The court extended the discovery deadline to November 30, granted Dorseys request for Arizona Rules of Civil

Procedure3 (Ariz. R. Civ. P.) 56(f) relief, and stated it would defer ruling on the motion for summary judgment until discovery was completed. 9 On December 10, Dorsey filed a response to the

DelCupps motion for summary judgment, an alternative motion for Unless otherwise noted, all subsequent references to Rules will be to the Arizona Rules of Civil Procedure.
3

leave to amend the complaint, and a cross-motion for summary judgment on the DelCupps counterclaims. Dorsey stated he

intended to pursue only his racketeering claim4 and his aiding and abetting tortious conduct claim which is essentially a

claim for Conspiracy to Defraud, and requested leave to amend the complaint to plead such causes of action with greater

specificity. 10 the On March 5, 2008, the court issued a ruling granting DelCupps motion for summary judgment, denying Dorseys

motion for leave to amend the complaint, and granting Dorseys motion for summary judgment on the DelCupps counterclaims. On

April 12, Dorsey moved for additional disclosure and discovery based on newly discovered evidence regarding certain telephone records. judgment Dorsey also moved for reconsideration of the summary ruling and requested a ruling on his motion for

sanctions that the court had previously deferred.

The court

issued final judgment on May 5, 2008, denying all of Dorseys motions. to Dorsey timely appealed. Revised Statutes We have jurisdiction pursuant section 12-2101(B)

Arizona

(A.R.S.)

(2003).

Dorsey abandoned his racketeering claim in his motion for reconsideration, which was confirmed in his docketing statement. Thus, the racketeering claim is not at issue on appeal. 5

DISCUSSION I. 11 Motion for Additional Discovery Dorsey argues the trial court erred by denying his We review a an abuse of

motion for additional disclosure and discovery. trial courts ruling on discovery matters for

discretion.

Lewis v. Arizona Dept of Economic Security, 186 A court abuses the courts

Ariz. 610, 616, 925 P.2d 751, 757 (App. 1996). its discretion when the reasons given for

conclusions are clearly untenable, legally incorrect, or amount to a denial of justice. State v. Chapple, 135 Ariz. 281, 297

n.18, 660 P.2d 1208, 1224 n.18 (1983). 12 The newly discovered evidence Dorsey offers is an of the codes on Makdas cellular telephone

interpretation records.

The evidence purports to show that Makdas cellular

telephone was in Phoenix on August 7, 2003, the day Mihret left Dorsey. The trial court denied Dorseys motion for additional

discovery explaining, in part: Plaintiffs counsel says that, after he received the Courts ruling on the crossmotions for summary judgment . . . he and his client spent considerable time reviewing all the evidence. This review included contacting a private investigator in Houston, a cell phone expert at AT&T and a cell phone expert in Arkansas. Plaintiff and his counsel later learned, according to them, that a certain code on Ms. DelCupps cellular telephone bills established that her cellular telephone (and, by inference, she) was in Phoenix on the day her sister

left Mr. Dorsey. . . .[T]he proffered evidence is untimely, confusing, inconclusive and inconsistent. It includes multiple hearsay. It is nonprobative and irrelevant. . . . Here, Plaintiffs new evidence (actually a new interpretation of previous evidence) was not obtained until long after the discovery cutoff of November 30, 2007. . . . Plaintiff has shown no reason why his new evidence could not and should not have been discovered sooner. We perceive no abuse of discretion in the trial courts ruling. 13 The telephone records for Makdas cellular telephone Dorseys counsel contacted

were first produced in January 2007.

the Cingular Wireless compliance department about the records and was apparently told that information about RSYS numbers was not available and that as a result counsel and Dorsey turned their attention to analyzing factual data contained in the records. Dorsey further contends that if he had not been

misled into believing information about RSYS numbers was not available, vigorously. arguably) Dorsey he would have pursued the information more

However, the DelCupps were not the ones who (even Dorsey. his Further, it does not appear and that

misled

retained

cellular

telephone

experts

private

investigator until after the court granted the DelCupps motion for summary judgment. Dorsey waited well over a year after

receiving the phone records to contact these experts to further investigate the RSYS codes. When a motion for summary judgment

is filed, that is the time for an opposing party to come forth with specific facts to controvert the motion. Patton v.

Paradise Hills Shopping Center, Inc., 4 Ariz. App. 11, 14, 417 P.2d 382, 385 (App. 1966); see also Lujan v. MacMurtrie, 94

Ariz. 273, 278, 383 P.2d 187, 190 (1963) (A party cannot sit idly by on the presentation of a motion for summary judgment which may well resolve the entire case and fail to urge his defense.). In fact, the court specifically extended the time

to reply to the DelCupps motion until discovery was completed. 14 Dorsey argues the new evidence establishes the

DelCupps had contacts with Arizona on August 7, 2003, and it supports an undeniable inference that the DelCupps assisted Mihret in abandoning Dorsey. A conspiracy is an agreement to Baker v.

accomplish an unlawful purpose that causes damages.

Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535, 542, 30, 5 P.3d 249, 256 (App. 2000). See infra 19. Even if the

DelCupps were in Arizona on August 7 and had contact with Mihret that day, that evidence does not establish the DelCupps were part of a conspiracy to defraud Dorsey. A trip to Phoenix does

not show there was an agreement to defraud. 15 Finally, Dorsey argues that the DelCupps never

explained what happened on August 7 and that the trial court

placed the entire burden in this matter on plaintiff ... without regard to the fact that the DelCupps obstructed discovery. is Dorseys burden to prove the DelCupps were part of It a

conspiracy to defraud him. Laborers, Teamsters and

See Wells Fargo Bank v. Arizona Masons Local No. 395 Pension

Cement

Trust Fund, 201 Ariz. 474, 499, 100, 38 P.3d 12, 37 (2002) (noting the burden of proof for civil conspiracy is one of clear and convincing evidence). Dorsey has not submitted any

admissible evidence to show the DelCupps, or anyone on their behalf, took any action to defraud him. 16 The trial court did not abuse its discretion in

denying the motion. II. 17 Summary Judgment Dorsey argues the trial court erred in granting the

DelCupps motion for summary judgment and in denying his motion for reconsideration.5 A court properly grants summary judgment

when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. P. 56(c). On appeal, we determine de novo Ariz. R. Civ. genuine

whether

issues of material fact exist and whether the superior court erred in applying the law. Prince v. City of Apache Junction, Additionally, we

185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996).

Dorsey makes the same arguments on appeal as he did in his motion for reconsideration. 9

view the facts in the light most favorable to the party against whom summary judgment was entered. Ariz. affirm 301, a 309-10, of 802 P.2d 1000, judgment Orme School v. Reeves, 166 1008-09 if the (1990). trial We court will was

grant

summary

correct for any reason.

City of Tempe v. Outdoor Sys., Inc., We review abuse of

201 Ariz. 106, 111, 14, 32 P.3d 31, 36 (App. 2001). the denial of a motion for reconsideration for an

discretion.

Tilley v. Delci, 220 Ariz. 233, 238, 16, 204 P.3d

1082, 1087 (App. 2009). 18 In granting the DelCupps motion for summary judgment,

the trial court ruled: Plaintiffs counsel describes Plaintiffs case as consisting of circumstantial evidence. It does not rise to that level. It consists of speculation and innuendo. The DelCupps have consistently maintained and stated under oath that they never met Plaintiff, have never been to Arizona, had nothing to do with Plaintiffs marriage to . . . Mihret . . . . Plaintiff has done nothing to challenge these facts. As noted in the Courts order of May 7, 2007, the most that Plaintiff can show is that, on August 7, 2003, the day that Plaintiffs wife allegedly abandoned him, one of the DelCupp Defendants may have had four telephone calls on a cellular telephone to which Plaintiffs wife allegedly had access at a time when she, according to Plaintiff, was still in Arizona. Plaintiff also offers evidence that Mrs. DelCupp may have spoken to her sister a number of times from August 7 through August 27, 2007, through a Getachew Yeneneh in Aurora, Colorado, although this evidence is far from clear.

10

Noticeably absent and missing from Plaintiffs colorful tales of Mrs. DelCupps family in Ethiopia and their efforts to bring various sisters to the West is evidence of any kind that either of the DelCupps was involved in activity or actions directed toward Plaintiff. On this record, they were not. There is no submissible jury issue. . . . There is nothing to suggest the DelCupps were involved in a conspiracy to defraud.[6] 19 For a civil conspiracy to occur two or more people

must agree to accomplish an unlawful purpose or to accomplish a lawful object by unlawful means, causing damages. Baker, 197 To incur

Ariz. at 542, 30, 5 P.3d at 256 (citations omitted).

liability for civil conspiracy there must be an agreement plus a wrongful act. conspiracy Id. (citations omitted). the conspirators to Essentially, a civil agree to commit an

requires

underlying tort.

Id. at 42; see also Wells Fargo Bank, 201 Here, the underlying tort is

Ariz. at 498, 99, 38 P.3d at 36.

fraud -- entering into a sham marriage unbeknownst to Dorsey. The DelCupps argue that conspiracy to defraud was never a cause of action in the case. Although the conspiracy to defraud claim was not specifically pleaded, it was addressed by the trial court and became the controlling issue in the case. See MacRae v. Betts, 40 Ariz. 454, 458-59, 14 P.2d 253, 25455 (1932) (explaining that although fraud was not specifically pleaded, the facts showing fraud were elicited and fraud became the controlling issue in the case); Pruitt v. Pavelin, 141 Ariz. 195, 205-06, 685 P.2d 1347, 1357-58 (App. 1984) (noting the purpose of Rule 9(b), requiring fraud to be pleaded with particularity, is to eliminate surprise; and where parties are not prejudiced, insufficiency of pleadings will not require reversal). 11
6

conspiracy

may

be

established

by

circumstantial

evidence

through the nature of the acts, the relationship of the parties, the interests of the conspirators, or other circumstances.

Dawson v. Withycombe, 216 Ariz. 84, 103, 53, 163 P.3d 1034, 1053 (App. 2007). 20 begins Dorsey first argues that the trial courts evaluation backwards by assuming the DelCupps assertions were

true and by making initial credibility determinations.

Dorsey

challenges the finding by the trial court that the DelCupps consistently maintained that they never met Dorsey, have never been to Arizona, and had nothing to do with Dorseys marriage. However, Dorsey then states it is irrelevant that the DelCupps never met him or whether the DelCupps have ever traveled to Arizona.7 21 The issue on appeal is whether there is any genuine

issue of material fact regarding Dorseys claim for conspiracy to defraud. A genuine issue is one that a reasonable trier

Dorsey also challenges two facts cited by the court in granting the DelCupps motion for summary judgment. However, for purposes of this review, we accept all of Dorseys facts as true. Thus, we accept that Mihret abandoned Dorsey on August 7, 2003; Makda used her cellular telephone to call Mihret four times on August 7; Mihret had possession of Dorseys Cricket telephone; Makda called a third party (Getachew Yeneneh) residing in Aurora, Colorado forty times between August 9 and August 26, 2003; and Mihret was in Aurora with Yeneneh during that time. Because neither of the two facts Dorsey challenges affect the grant of summary judgment, we decline to address this argument. 12

of fact could decide in favor of the party adverse to summary judgment on the available evidentiary record. Martin v.

Schroeder, 209 Ariz. 531, 534, 12, 105 P.3d 577, 580 (App. 2005). We conclude there are no genuine issues of material fact

based on this record. 22 First, there is no evidence of an agreement between There is nothing

the Delcupps and Mihret to defraud Dorsey.

connecting the DelCupps to Dorseys actions of meeting Mihret through an online agency; choosing to fly to Ethiopia in 2002; and choosing to marry Mihret while in Ethiopia. allegations regarding Makdas alleged Further, the in Mihret

involvement

agreeing to marry Dorsey for the sole purpose of gaining entry into the United States are speculative at best. The first

allegation is that Makda married a United States citizen in 1999 and therefore understands the process involved in getting into the United States as the spouse of a . . . citizen. The fact

that Makda immigrated to the United States after marrying a citizen does not prove the alleged conspiracy in this case. The

second allegation is that after Mihret received telephone calls from Makda and two other sisters in November 2002, when Dorsey was in Ethiopia, Mihret appeared very eager to get married. Notably, there is no evidence regarding the conversation between Makda and Mihret, and no evidence of any improper agreement. Dorsey merely speculates that Makda must have said something to

13

Mihret theory,

to

peak

Mihrets is not last

interest

in

marrying by is any that

Dorsey. evidence, Dorsey

This only had a

however, The

supported allegation

speculation.

conversation with Makda in 2003 and Makda told him that she was planning on having another sister marry a gay guy . . . from the United States so that her sister could get into the United States and get alien spousal benefits and then obtain a divorce. Dorsey has submitted no proof that this actually happened.

Further, even if true, this allegation does not connect Makdas actions to Mihret or Dorsey. None of these allegations show any

agreement between Makda and Mihret to defraud Dorsey. 23 DelCupps The remainder of Dorseys to evidence in goes to the

apparent

assistance

Mihret

leaving

Dorsey.

Assistance to the tortfeasor by itself, however, which courts often use to infer a conspiratorial agreement, may be

insufficient to prove an actual agreement to participate in the conspiracy. This is Dawson, 216 Ariz. at 103, 54, 163 P.3d at 1053. there is a qualitative difference between

because

showing an agreement to participate in a tort (conspiracy) and a knowing action which might substantially aid the tortfeasor to commit a tort. Id. Here, even if the DelCupps provided

assistance to Mihret in leaving Dorsey, that does not show the DelCupps were part of Mihrets supposed plan to enter into a sham marriage. Leaving a spouse, by itself, is not a tort. If

14

the DelCupps assisted a family member in leaving her spouse, we cannot conclude that such assistance raises a genuine issue of material fact regarding the existence of a conspiracy to defraud Dorsey. 24 cellular Dorseys evidence shows the DelCupps purchased Makdas telephone on August 5, 2003. Dorsey alleges the

DelCupps purchased the phone specifically for use on the August 7 Phoenix trip8 and to communicate with Mihret afterwards. He

further maintains the cellular telephones presence in Phoenix on August 7 shows evidence of collusion between the DelCupps and Mihret. Dorsey argues a reasonable person could infer that the

DelCupps knew in advance that Mihret would abandon him and that they were conspiring with Mihret. even if it is appropriate to We disagree. consider it, This evidence, is simply too

speculative. 25 was in Similarly, the fact that Makdas and Mihrets mother Colorado to with Makda when Mihret abandoned We fail to Dorsey see is any

irrelevant

the

conspiracy

issue.

connection between Mihrets mother staying with Makda and Mihret leaving her husband. 26 Moreover, Dorseys contention that Makda lied

throughout the litigation does not mean summary judgment was

This Phoenix trip is based on the newly discovered evidence. See supra 13-14. 15

improperly granted.

Accepting all of Dorseys assertions as

true, if Makda lied about being in contact with her sister the day Mihret left Dorsey, there remains no evidence that Makda agreed with Mihret to commit a tort. 27 Next, Dorsey argues the evidence shows Mihret traveled Wherever Mihret traveled

to Colorado after she left Dorsey.

after leaving Dorsey is irrelevant to establish an agreement for purposes of a conspiracy to defraud Dorsey. The existence of an

agreement to defraud would have to have been in place prior to the marriage. Even if Mihret joined her sister in Colorado

after leaving her husband, that does not create any genuine issue of fact regarding a conspiracy. 28 Finally, Dorsey argues that the DelCupps provided

assistance to Mihret because Mihret had no financial means of her own to travel. There is no evidence the DelCupps provided

financial assistance to Mihret, but even if the DelCupps did assist Mihret, financial assistance alone does not establish a conspiracy. The fact that Makda and her husband might help

Mihret during a time of need does not give rise to an inference of a tortious conspiracy. 29 The evidence, even when viewed in the light most

favorable to Dorsey, does not create a genuine issue of material fact that the DelCupps agreed to participate in a conspiracy to defraud Dorsey. The record shows that Dorsey traveled to

16

Ethiopia

in

2002

after

being

introduced

to

Mihret

online,

married Mihret, and obtained the relevant documentation to have Mihret come to the United States. No evidence in the record

shows the DelCupps had anything to do with Dorseys marriage. The fact that the DelCupps may have known that Mihret was

leaving Dorsey and provided assistance to her is insufficient to permit a finding by clear and convincing evidence of an

agreement between the DelCupps and Mihret for Mihret to enter into a sham marriage and then abandon it. See Dawson, 216 Ariz.

at 105, 59, 163 P.3d at 1055; and Wells Fargo Bank, 201 Ariz. at 499, 101, 38 P.3d at 37 (noting the difference between proving an agreement to participate in a tort and proving a knowing action that aids another to commit a tort). The trial

court properly granted summary judgment to the DelCupps and did not abuse its discretion in denying Dorseys motion for

reconsideration. III. Leave to Amend Complaint 30 Dorsey argues the trial court erred by denying his Leave to amend should

motion for leave to amend the complaint. be granted liberally.

Owen v. Superior Court, 133 Ariz. 75, 79, Amendments will be permitted unless

649 P.2d 278, 282 (1982).

the court finds undue delay in the request, bad faith, undue prejudice, or futility in the amendment. MacCollum v.

Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097, 1103 (App. 1996).

17

A motion for leave to amend is left to the trial court's sound discretion, and we will not disturb its ruling absent an abuse of discretion. Romo v. Reyes, 26 Ariz. App. 374, 375-76, 548

P.2d 1186, 1187-88 (1976). 31 Here, the trial court ruled: Plaintiffs alternative motion to amend his complaint to plead [his] causes of action with greater specificity will be denied as moot and futile. It is moot because Plaintiff has addressed these issues, as have Defendants, in the current briefing. It is futile because the issue now is not pleading, but whether there are facts sufficient to withstand Defendants motion. There are none. We discern no abuse of discretion in this ruling. 32 When issues not raised in pleadings are tried by

express or implied consent, they shall be treated as if they had been raised in the pleadings. Ariz. R. Civ. P. 15(b). Here,

the court and both sides treated the complaint as including a claim for conspiracy to defraud. For instance, in the DelCupps

motion to dismiss, they alleged that Dorseys action was based on the false claim of a vast conspiracy to defraud him. the court noted that Dorseys in theory was in that the Later, DelCupps of the or,

allegedly alleged perhaps,

committed

acts to

Arizona,

furtherance of his

conspiracy in

deprive of the

Plaintiff alleged

wife, to

furtherance

conspiracy

entice

Plaintiff to fraudulently marry [Mihret] in Ethiopia to allow

18

her to [immigrate] to the United States.

In its ruling on

personal jurisdiction, the court explained Dorseys allegations as a conspiracy among all the defendants inducing him to marry Mihret to bring her to the United States and then causing her to abandon Dorsey. In his eighth supplemental disclosure statement

filed four months later, Dorsey alleged a civil conspiracy to defraud in conjunction with his aiding and abetting tortious conduct cause of action. The motion for leave to amend was Thus, the court was correct that

filed over two months later.

the issue was futile in that the pleading was not the issue, but only whether the facts supported the claim. 33 Because an amendment would not have changed the

outcome of the action, we conclude the trial court did not abuse its discretion in denying the motion. IV. 34 Request for Clarification Dorsey argues that the court abused its discretion in

denying his request for clarification regarding the DelCupps financial records. In December 2006, Dorsey served a request

for production of documents specifically requesting financial records February objected. evidencing 1, 2002 payments through to or on behalf 2003. of Mihret The from

September

30,

DelCupps

The court ruled that the request was broad, poorly

phrased, and was potentially intrusive of the DelCupps privacy. Accordingly, the court ordered an in-camera inspection of any

19

financial documents which say or specifically relate or refer to Mihret Kahssay on their face. Dorsey filed a request for

clarification asking whether the documents must specifically say Mihret Kahssay if they in some way relate to Mihret and

whether documents specifically relate to Mihret if they show payments for or on behalf of Mihret, such as the purchase of airline or bus tickets. The court denied the motion,

specifically stating only documents which say, mention or refer to Mihret Kahssay need [to] be produced. No documents were

produced as the DelCupps asserted they did not have any such documents. 35 Dorsey argues that this ruling placed an unreasonable

restriction on discovery and deprived him of an opportunity to obtain relevant evidence because relevant financial records As

would not necessarily have the name Mihret Kahssay on them.

the DelCupps note, Dorsey was not so restricted in his discovery because he was given complete access to their telephone records and internet accounts, he deposed the DelCupps twice and

submitted interrogatories. 36 The court did not abuse its discretion in limiting the

discovery of financial documents and denying Dorseys motion for clarification. V. 37 Motion for Sanctions Dorsey argues the trial court erred in denying his

20

motion for sanctions for the DelCupps failure to appear at their depositions. for an We abuse review of the denial of a motion for

sanctions

discretion,

giving

considerable State

deference to the trial court's perspective and judgment.

v. Meza, 203 Ariz. 50, 55, 19, 50 P.3d 407, 412 (App. 2002). 38 On October 23, 2006, Dorsey noticed the depositions of The DelCupps failed

the DelCupps for November 16 in Colorado. to appear for their depositions. following day to defend

However, Robert appeared the deposition of a private

Dorseys

investigator. the DelCupps.

Dorsey moved for $1,559.49 in sanctions against The DelCupps responded that the issue of personal

jurisdiction had not been decided and that Dorseys notice of deposition was defective and invalid. issued a ruling as follows: The Court will not and need not recite the extended, tortured procedural history of this case. The Court was flooded with motions from both sides. Plaintiff, as well as Defendants, violated rules of procedure, defaulted in discovery obligations and responses and made frequent and unnecessary applications to the Court for relief against the other sides alleged defaults. The case was no model of procedural perfection. . . . . Plaintiffs request for sanctions arises from Defendants failure to appear for their The court eventually

21

initially-noticed depositions in Denver, Colorado. The matter required Court intervention and was satisfactorily resolved. Defendants legal reasons for not appearing were marginally persuasive, at best. Plaintiffs counsel was in Denver for two other depositions, which did occur. The Court deferred ruling on Plaintiffs motion for sanctions at the time and advised Plaintiff that he could renew his request after verdict or judgment. Plaintiff has now done so. In the totality of circumstances of this case, and in the exercise of its discretion, the Court denies both motions for sanctions.[9] 39 The trial court enjoys considerable discretion in

rulings such as this one, and we find no abuse of discretion. 40 Additionally, if a party fails to appear for a

deposition, the court has discretion to make orders in regard to the failure as are just. court did not find the Ariz. R. Civ. P. 37(f). DelCupps it failure to Although the appear to be

substantially

justified,

considered

other

circumstances,

including the occurrence of another deposition in Colorado that Dorsey took during the same visit, the proceedings throughout the case regarding all of the discovery disputes, and the

DelCupps own motion for sanctions. an award of expenses unjust. The

The court impliedly found court did not abuse its

discretion. The DelCupps requested sanctions against Dorsey under A.R.S. 12-349 for filing a frivolous lawsuit, for which sanctions were denied. 22
9

CONCLUSION 41 For the foregoing reasons, we affirm the judgment of

the trial court in favor of the DelCupps on Dorseys claims against them. ___/s/____________________________ JOHN C. GEMMILL, Judge CONCURRING:

____/s/_____________________________ PETER B. SWANN, Presiding Judge

____/s/_____________________________ DIANE M. JOHNSEN, Judge

23

January 18, 2011

RE:

KERMICK DORSEY v ROBERT DELCUPP et ux Arizona Supreme Court No. CV-10-0254-PR Court of Appeals Division One No. 1 CA-CV 08-0472 Maricopa County Superior Court No. CV2006-000439

GREETINGS: The following action was taken by the Supreme Court of the State of Arizona on January 18, 2011, in regard to the above-referenced cause: ORDERED: Petition for Review = DENIED. A panel composed of Chief Justice Berch, Vice Chief Justice Hurwitz, and Justice Bales participated in the determination of this matter. Record returned to the Court of Appeals, Division One, Phoenix, this 18th day of January, 2011.

Rachelle M. Resnick, Clerk

TO: Robert Michael Delcupp III Kermick Z Dorsey Ruth Willingham adc